The Beat Goes On – Another 1441 Remand With A Twist
The Beat Goes On – Another 1441 Remand With A Twist
Non-jury Trial in State Court Immaterial
Court Orders Defendant to Show Cause Within 5 Days of Filing Removal Pleadings
By: Max Schellenberg
Langlois v. Kirby Inland Marine, LP, 2015 U.S. Dist. LEXIS 140371 (M.D. La., Oct. 15, 2015, DeGravelles, J.)The suit for damages as a result of a maritime casualty on the Intracoastal Waterway in Louisiana was filed in state court. It was timely removed to federal court; within 5 days of the filing of the removal pleadings, the court ordered the defendant sua sponte to show cause why it should not be remanded.The defendant attempted to distinguish prior holdings of the court which permitted removal. However, Judge deGravelles was unpersuaded and noted that Judge Miller whose decision in Ryan v. Hercules Offshore, Inc. began the controversy over the 2011 Amendments to 1441(b) changed his mind in Sanders v. Cambrian Consultants (CC) Am., Inc., 2015 U.S. Dist. LEXIS 125611, 2015 WL 5554639 (S.D. Tex. Sept. 21, 2015).The defendant also argued that in this case the plaintiff did not request a trial by jury in the state court and as such there is no remedy which cannot be pursued in a federal forum; thus, the savings to suitors clause is not implicated. Again, Judge deGravelles was unpersuaded:As the Supreme Court has explained, "the saving to suitors clause protects all remedies, of which trial by jury is an obvious, but not exclusive, example." Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 439, 121 S. Ct. 993, 148 L. Ed. 2d 931 (2001)
